E-discovery: E-storytelling delivers happy trial endings

Human document review is the most expensive stage of e-discovery, yet it often receives the least attention. Why? The answer, in part, lies in the perpetual quest to find a technology that will solve all our e-discovery problems. I call this the “Press the Button” effect, as I have heard too many judges ask, “What’s so complicated about e-discovery? Just press the right button and the documents pop out.”

The quest for the ultimate e-discovery “killer app” is only one of the reasons that human document review has received scant attention. The more profound reason is that e-discovery is often thought to add nothing to winning the case while potentially giving the opposition ammunition and costing a bundle. In other words, dreaded e-discovery has one goal: damage control.

If lawyers perceive human document review as merely damage control, the only objectives in conducting it become controlling costs and avoiding sanctions. Litigation management then becomes schizoid: Litigators go about their business of taking depositions, engaging in motion practice and preparing for trial or summary judgment motion (or, mercifully, an early favorable settlement), while the grunting e-discovery team slogs away in the basement, burning through a limited budget while “adding nothing” to winning the case. Litigation thus takes on the character of two parallel universes operating independently, speaking different languages, and often never intersecting—no wonder some counsel and clients have come to detest “worthless” e-discovery.

This erroneous perception of e-discovery as purely a cost driver lies behind many of the current proposed rule changes and the a priori limits on the number of search terms in some court-mandated protocols. “If e-discovery produces nothing of value, less is more,” goes the reasoning. But what a mistake! Here we are, in the midst of a revolution where the proliferation and contemporaneous weight of data provides a map to the Promised Land, yet we instead treat data like a biblical plague of locusts.

Don’t mistakenly structure your reviews to resemble a 19th-century factory assembly line in a Dickens novel; instead, recall that Dickens exposed important truths by observing real-world details about life in England within his stories—the facts are certainly necessary, but it’s the story they tell that reveals the whole truth.

Human document review marshals the documents you need to tell your own litigation story while gathering documents to undercut or rebut the opposition’s account. As revolutionary as it may sound, the e-discovery review team is not only part of your trial team but the part that may best tell your story. Don’t send your trial team out to tell the tale with a synopsis when they could have the full compelling story. And don’t assume you understand all the key plot points of your litigation story when the case commences if you haven’t been to the library that holds all the best information on the subject. Almost always, you’ll find your most compelling story through the discovery and document review process. The data contains the case’s drama, composed of context and memorable excitement.

Document review reveals key plots and subplots, but whether relying on document sets culled from key works or predictive coding, most reviews unfortunately train the reviewers to robotically identify documents responsive to the opposition’s request to produce, rather than seeking out the story elements that tell the real tale. What a mistake! No trial attorney ever won a case by adopting the opposition’s characterizations (unless the opposition was an idiot), yet “traditional,” forced-march document reviews make this exact mistake.

Document review should not be a mechanical process of plunking documents into buckets of “responsive,” “non-responsive” and “maybe responsive,” depending on the whim and fancy of the opposition’s directions. Of course, the document review must identify the requested documents, and we need sampling and the quality control tools to ensure legal defensibility, but all of that is secondary. The principle purpose of review is to recognize and understand the documents that tell your story, not the opposition’s. A cagey document request from the opposition will make sure that your reviewers are only identifying the documents that support the opposition’s story. Don’t let the opposition control your review!

Empower your reviewers to be your storytellers. Every review should have a huge, visible, developing storyboard, diagramming your tale. Think drama, think plot, think protagonists, think antagonists, think conflict resolution—this is how you will tell the story to the jury. Why should document review be based on industrial-era factory concepts? The mathematical and scientific approach of enhancing and measuring documents-reviewed-per-batch-per-minute-per-reviewer will never capture what is important for the dramatic oration of the trial attorney. Why would we ever expect mechanical processes developed for the 19th-century assembly line to unleash a compelling dramatic story?

For example, the deciding factor in a case may not be whether your client made some technical communication error but the hard work client employees put into trying to getting it right, revealing the enlightening moment the opposition was told the truth but then ignored it, and the conscientious follow up that corrected the mistake. In this light, your case is not about a mistake that damaged the plaintiff but about the everyday activities of humans trying to get it right, understandably slipping on unseen rocks and terrain, and working hard to fix their errors. Or, as another example, your case may turn on a simple “yes” email that resolves of a series of suspended tensions your team has found and has been looking to explain. You need a document review team that can understand, embrace, refine and articulate that story, otherwise, documents will be missed or plopped into the wrong bucket.

Train your reviewers to find and develop your story. Given its importance, you will find that your reviewers will jump to the task, and suddenly they will be discovering important angles, events and transactions. Think of your reviewers not as fungible factory production units but as your investigative team and working focus group, locating destiny, fortune and fate in your documents. Unleash their creative potential—Google didn’t become successful by locking creative talent in isolated cubicles, and neither will you. Create physical collaborative environments and deploy communication tools that encourage a common collective quest. You may be surprised when they discover the winning formulas for your case!

The moral of this tale: Model your review structure to reflect the story values you wish to tell. Without that, it’s a pity, but worse, your review is tragically doomed, and that’s the path to “unhappily ever after.”